Citation Nr: 0106389
Decision Date: 03/05/01 Archive Date: 03/08/01
DOCKET NO. 94-39 338 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for chronic obstructive
pulmonary disease with asthma.
2. Entitlement to an increased evaluation for anxiety
reaction with colitis, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
C. L. Mason, Counsel
INTRODUCTION
The veteran served on active duty from May 1972 to July 1973
and from November 1990 to September 1991.
This case came before the Board of Veterans' Appeals (Board)
on appeal from rating decision of the St. Petersburg, Florida
Department of Veterans Affairs (VA) Regional Office (RO),
which denied service connection for chronic obstructive
pulmonary disease with asthma and an increased evaluation in
excess of 10 percent for the veteran's anxiety disorder with
colitis.
Upon review, the Board notes that although this case has been
on appeal for an extended period of time, in order for the
Board to properly adjudicate these issues, a REMAND is
required.
REMAND
The Board observes that although the evidence, including VA
examinations, reveals multiple diagnoses of chronic
obstructive pulmonary disease with bronchial asthma, the
etiology of the disease has not been addressed. Moreover, a
DA Form 2173, dated in April 1992, indicates that the
Secretary of the Army affirmed a finding that the veteran's
positive tuberculosis test with severe cough occurred in the
line of duty. Additionally, the veteran claims that a VA
physician recharacterized his anxiety disorder as
posttraumatic stress disorder and bipolar disorder. The
Board notes that it does not appear that the veteran has had
a recent VA examination for his anxiety disorder with
colitis. Finally, during the course of his claim, the
veteran has alleged treatment by a private physician. It is
not clear whether records of such treatment have been
obtained. The VA's duty to assist a claimant includes
obtaining medical records, and an examination and opinion in
order to determine the nature and extent of the veteran's
disability. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, 114 Stat. 2096 (2000).
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law redefines the obligations of the Department
of Veterans Affairs (VA) with respect to the duty to assist.
This change in the law is applicable to all claims filed on
or after the date of enactment of the Veterans Claims
Assistance Act of 2000, or filed before the date of enactment
and not yet final as of that date. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart
(a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, 2096-2099 (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the VA regional office (RO) has not yet considered whether
any additional notification or development action is required
under the Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the appellant if the Board were to
proceed to issue a decision at this time. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
Therefore, for these reasons, a remand is required.
Accordingly, this case is REMANDED for the following:
1. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran for his chronic
obstructive pulmonary disease with
bronchial asthma and his anxiety disorder
since 1991. After securing the necessary
release, the RO should obtain these
records.
2. The veteran should be afforded a VA
pulmonary examination to determine the
nature and etiology of the veteran's
pulmonary disorder. After examining the
veteran and reviewing the veteran's
claims folder to include the veteran's
service records and all medical reports
and opinions, the examiner should opine
whether it is as likely as not that the
veteran's chronic obstructive pulmonary
disorder with bronchial asthma is related
to service. The VA examiner should
provide reasons and bases for this
opinion.
3. The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light
of the changes in the law, the RO should
refer to VBA Fast Letters 00-87
(November 17, 2000), 00-92 (December 13,
2000), and 01-02 (January 9, 2001), as
well as any pertinent formal or informal
guidance that is subsequently provided by
VA, including, among other things, final
regulations and General Counsel precedent
opinions. Any binding and pertinent
court decisions that are subsequently
issued also should be considered. If the
benefit sought on appeal remains denied,
the appellant and the appellant's
representative, if any, should be
provided with a supplemental statement of
the case (SSOC). The SSOC must contain
notice of all relevant actions taken on
the claim for benefits, to include a
summary of the evidence and applicable
law and regulations considered pertinent
to the issue currently on appeal. An
appropriate period of time should be
allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran has the right to submit
additional evidence and argument on the matter or matters the
Board has remanded to the regional office. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).